Cleared of charges, teacher sues accusing parents

SAN JOSE  In an unusual case that some experts worry will have a chilling effect on the reporting of school abuse, a former San Jose teacher is suing a group of parents and young girls he says defamed him by complaining about his behavior.

The families accused physical education teacher John Fischler of inappropriately touching their two 10- and 11-year-old girls at Holy Spirit Catholic school and peeking in a girls' bathroom. The Almaden Valley school, and eventually the police, cleared Fischler of sexual misconduct.

But the teacher, claiming that the ordeal indelibly stained his reputation and ruined his teaching career, brought suit, leading to a rare defamation trial now underway in a San Jose civil court.

The trial epitomizes the tension between two societal aims -- encouraging victims to report perceived abuse and restoring the reputation of the wrongfully accused.

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While there's no doubt some people are unjustly accused, "lawsuits like this have a tremendous chilling effect because 80 to 90 percent of victims are too cowed to come forward anyway,'' said attorney Paul A. Mones, one of the nation's leading children's-rights advocates.

Most defamation suits, commonly filed these days over false online reviews or angry accusations by members of homeowner associations, wind up settling or are kicked out of court on the grounds of free speech about issues of public significance, said Aaron P. Morris, president of the California Defamation Lawyers Association.

"One goal in a defamation action can be to recover damages,'' Morris said. "But the priceless value of a defamation action is to gain back your reputation.''

Some Catholic priests accused of sexual abuse have sued their accusers, but with little success. However, in August, a judge in Ontario, Canada, ordered a man's nieces to pay him $125,000 in defamation damages for sending emails to family members accusing him of sexually abusing them when they were young girls.

In Fischler's case, he contends he was the victim of a "conspiracy'' by "classic parent bullies'' and their daughters, including a popular girl he describes as having a "gang-leader-like personality,'' to get him fired from the private Catholic school where he was an at-will employee, according to court documents.

The three girls named in the suit, but not identified by this newspaper because they are under 18, lied about his conduct, he claims, and helped spread false rumors in 2009 and 2010 that built to a "malicious craze" against him. One family used words like "pervert," a gross exaggeration of his conduct by any measure, he claims. The parents, Fischler contends, either knew the allegations were false or should have known and were negligent.

"He wants his day in court, so that the abuse and bullying will stop, and the whispery innuendo and uncertainty... ends in the official record,'' his lawyer, Robert M. Vantress, wrote in a court document.

The families staunchly deny the claims, contending in court documents that their children were "naturally uncomfortable" about Fischler's conduct, giving them the right to be concerned and talk to others about it. The situation also is partly Fischler's fault, they say, because he did not abide by the school's no-touching policy, even after being explicitly warned.

"He is a crude, rude , socially inappropriate teacher who has offended the sensibilities of young girls by his unthinking and uncaring conduct," one of the lawyers, Rick R. Pedersen, wrote in a court document.

The lawsuit arises chiefly out of two incidents about a year apart. In fall 2009, one of the girls said Fischler touched her buttocks while teaching the class to do squats. However, the other children did not corroborate the girl's account. Fischler acknowledged touching her hips and was admonished by administrators to abide by the school's no-touching policy. However, the girl's parents remained deeply concerned about his conduct.

In December 2010, Fischler knocked on the door of the girls' bathroom, which served as a quasi-locker-room. He was drawn to the sound of shrieking inside because the noise was disrupting a nearby class. Some of the girls were changing clothes, and a few of them claimed Fischler poked his head in and stared at them.

The school reported the incident to police, and Fischler was put on paid leave for alleged sexual misconduct. An independent investigator cleared Fischler after finding the ringleader of the accusers acted out of an "angry, childish grievance" and persuaded other girls to go along with the restroom accusations. Fischler alleges the girl did not like him because he had once chided her; she also may have believed he touched her friend's buttocks in the 2009 incident.

The same girl told her parents after the restroom incident that a few weeks earlier Fischler had massaged her shoulders, prompting her to tell him not to touch her. Fischler said he merely tapped her on the shoulder because she refused to get out of his chair.

Among the witnesses expected to take the stand are one of the girls who was allegedly pressured into saying Fischler had leered at the girls in the bathroom, as well as the child's father, who exposed the alleged coercion.

But in a court document, one of the family's lawyers characterizes the situation not as a conspiracy but as an understandable misperception by the children: ... the junior high girls had acted like junior high girls; they misunderstood and misrepresented the two incidents.''

Despite the school's conclusions, Fischler was never publicly exonerated. Initially, San Jose police took a cautious approach, characterizing the investigation as "inconclusive.'' That meant that Fischler was listed for a time on the California Abuse Central Index, a database used by law enforcement and employers who are in regular, professional contact with children. Months passed before police concluded the accusations were "unfounded" and took his name off the list.